Part 1 Preliminary

Part 1 Preliminary

1 Name of Act

1 Name of Act

This Act is the Water Industry Competition Act 2006.

2 Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

2A Objects of Act

2A Objects of Act

The objects of this Act are—

(a) to protect public health and safety and the environment in connection with the water industry, including in the longer term, and

(b) to protect the interests of consumers, particularly small retail customers, in the quality, reliability and price of water and sewerage services, including in the longer term, and

(c) to facilitate the efficient, reliable and sustainable provision of water and sewerage services, having regard to financial, environmental and social considerations, and

(d) to promote the sustainable use of resources in connection with the water industry, and

(e) to facilitate competition in the water industry with a view to encouraging innovation and improved efficiency in the industry.

s 2A: Ins 2021 No 26, Sch 1[2].

3 Definitions

3 Definitions

(1) Words and expressions that are defined in the Dictionary at the end of this Act have the meanings set out in that Dictionary.

(2) Notes included in this Act do not form part of this Act.

3A Meaning of “classes” of water industry infrastructure

3A Meaning of “classes” of water industry infrastructure

The classes of water industry infrastructure are as follows—

(a) infrastructure for the purpose of the production or supply of drinking water,

(b) infrastructure for the purpose of the capture and treatment of stormwater for the production, supply and use of recycled water,

(c) infrastructure for the purpose of the collection and treatment of sewage for the production, supply and use of recycled water,

(d) infrastructure for the purpose of the collection and further treatment of recycled water for the supply and use of the further treated recycled water,

(e) infrastructure for the purpose of the collection and treatment of sewage for disposal and the disposal of the treated sewage,

(f) infrastructure for another purpose prescribed by the regulations.

s 3A: Ins 2021 No 26, Sch 1[3].

4 Act binds Crown

4 Act binds Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2 Approvals and licences for certain water industry infrastructure

Part 2 Approvals and licences for certain water industry infrastructure

pt 2: Subst 2021 No 26, Sch 1[4].

Division 1 Preliminary

Division 1 Preliminary

pt 2, div 1: Subst 2021 No 26, Sch 1[4].

5 Water industry infrastructure to which Part applies

5 Water industry infrastructure to which Part applies

(1) This Part applies to the following—

(a) water industry infrastructure used or to be used for providing water or sewerage services to 30 or more small retail customer premises (a category A scheme),

(b) water industry infrastructure used or to be used for the production of drinking water, including a filtration, treatment or desalination facility, that has a design capacity of more than 500 kilolitres each day, together with a reticulation network connected to the infrastructure and used to convey anything to or from the infrastructure,

(c) water industry infrastructure used or to be used for the treatment of sewage, stormwater or recycled water that has a design capacity of more than 750 kilolitres each day, together with a reticulation network connected to the infrastructure and used to convey anything to or from the infrastructure,

(d) water industry infrastructure declared by the regulations to be water industry infrastructure to which this Part applies.

(2) However, this Part does not apply to the following—

(a) water industry infrastructure within the area of operations of a public water utility and operated by or on behalf of the public water utility, other than as a last resort provider,

(b) water industry infrastructure excluded from the application of this Part by the regulations.

(3) For the purposes of determining whether this Part applies to water industry infrastructure by operation of subsection (1)—

(a) initial and planned future stages of development of the infrastructure are to be taken into account, and

(b) the design capacity of the infrastructure is to be determined in accordance with guidelines issued by IPART and published in the Gazette and on IPART’s website.

s 5: Am 2011 No 66, Sch 1 [1]; 2012 No 97, Sch 1.45 [1]. Subst 2021 No 26, Sch 1[4].

5A Additional objects of Part

5A Additional objects of Part

In considering whether or not an approval or licence is to be granted or varied under this Part and what conditions are to be imposed on an approval or licence, regard is to be had to the objects of this Act and the following additional objects—

(a) to promote the adoption of written policies concerning the use of water resources as prescribed by the regulations, if any,

(b) to mitigate the potential for adverse financial implications for small retail customers generally arising from the activities proposed to be covered by the approval or licence,

(c) to promote the equitable sharing among participants in the drinking water market of the costs of water industry infrastructure that significantly contributes to water security.

s 5A: Ins 2021 No 26, Sch 1[4].

Division 2 Requirements for approvals and licences

Division 2 Requirements for approvals and licences

pt 2, div 2: Subst 2021 No 26, Sch 1[4].

6 Requirements for construction of water industry infrastructure

6 Requirements for construction of water industry infrastructure

(1) A person must not construct water industry infrastructure to which this Part applies unless the construction—

(a) is authorised by a scheme approval, and

(b) is carried out by or on behalf of the registered operator for the scheme.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

(2) The regulations may prescribe exceptions to this section.

s 6: Am 2011 No 66, Sch 1 [2]. Subst 2021 No 26, Sch 1[4].

6A Requirements for operation of water industry infrastructure

6A Requirements for operation of water industry infrastructure

(1) A person must not operate water industry infrastructure to which this Part applies unless—

(a) the infrastructure is substantially constructed as authorised by a scheme approval, and

(b) the operation is authorised by an operational approval, and

(c) the person is the registered operator for the infrastructure.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

(2) This section does not apply to the operation of water industry infrastructure in the course of commissioning the infrastructure.

(3) The regulations may prescribe further exceptions to this section.

s 6A: Ins 2021 No 26, Sch 1[4].

6B Requirements for sale of water and sewerage services from regulated schemes

6B Requirements for sale of water and sewerage services from regulated schemes

(1) A person must not sell water or sewerage services provided by means of a regulated scheme, including the service of connecting premises to the water or sewerage services, unless—

(a) the person is the registered retailer for the infrastructure, and

(b) the sale is authorised by the person’s retailer licence.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

(2) In this section, sell water or sewerage services includes charging a fee or amount to connect premises to a water or sewerage service, including charging an infrastructure charge, developer charge or administration charge related to connecting premises to a service.

(3) Subsection (1) does not apply to a council.

(4) This section does not apply to the sale of the service of connecting premises to the water or sewerage services by a registered operator for a scheme if—

(a) the scheme is under construction, and

(b) no person has been registered as the registered retailer for the scheme.

(5) The regulations may prescribe further exceptions to this section.

s 6B: Ins 2021 No 26, Sch 1[4].

Division 3 Approvals

Division 3 Approvals

Note.

A scheme approval authorises the construction of water industry infrastructure to which this Part applies as specified in the approval.

Scheme approvals are granted by IPART.

An operational approval authorises the operation of water industry infrastructure to which this Part applies as specified in the approval.

Operational approvals are granted by IPART.

pt 2, div 3: Subst 2021 No 26, Sch 1[4].

7 Application for approval

7 Application for approval

(1) An application for a scheme approval or operational approval is to be made to IPART.

Note.

Section 12 imposes requirements for an application and allows an application to be rejected if the requirements are not complied with.

(2) An application for a scheme approval for water industry infrastructure—

(a) may be made by any person, and

(b) must only be made with the consent of the owner of the land on which the infrastructure, other than pipelines within the reticulation network connected to the infrastructure, is or is to be located.

(3) An application for an operational approval for water industry infrastructure—

(a) may be made by any person, and

(b) must specify the scheme and scheme approval to which it relates.

s 7: Am 2011 No 66, Sch 1 [3]–[5]. Subst 2021 No 26, Sch 1[4].

7A Process for dealing with an application for approval

7A Process for dealing with an application for approval

(1) For all applications for an approval, IPART must invite submissions—

(a) from the Department of the Public Service responsible to the Minister administering this Part, and

(b) from the Department of the Public Service responsible to the Minister administering the Public Health Act 2010, and

(c) as otherwise required by the regulations.

(2) In addition, if the application is for a scheme approval, IPART must also invite submissions from—

(a) the public, by notice published on IPART’s website and otherwise as considered appropriate by IPART, and

(b) the council for the local government area within which the proposed area of operations of the scheme is located or to whose infrastructure the scheme is to be connected, and

(c) the Department of the Public Service responsible to the Minister administering the Environmental Planning and Assessment Act 1979, and

(d) if a licence under the Protection of the Environment Operations Act 1997 may also be required—the appropriate regulatory authority under that Act, and

(e) if the infrastructure is or is proposed to be within the area of operations of a public water utility—the public water utility, and

(f) if an authorisation, however described, under the Water Management Act 2000 may also be required—the Department of the Public Service responsible to the Minister administering that Act, Chapter 3.

(3) An invitation to make submissions on an application must—

(a) allow at least 28 days for submissions to be made, and

(b) be accompanied by a copy of the application, other than material that IPART considers to be confidential, or set out how a copy of the application may be obtained.

(4) IPART must not accept a variation of an application after an invitation to make submissions has been given unless satisfied that—

(a) the application as varied will be substantially the same as the original application, and

(b) no prejudice will be caused to a person who made a submission concerning the original application.

(5) If a variation is not accepted, the applicant may withdraw the application and make a new application.

s 7A: Ins 2021 No 26, Sch 1[4].

7B Determining an application for approval

7B Determining an application for approval

(1) IPART is to determine an application for an approval by granting the approval, either as applied for or with modifications IPART considers appropriate, or by refusing to grant the approval.

(2) If IPART proposes to refuse to grant an approval or to grant an approval with modifications, IPART must—

(a) give written notice of the proposed refusal or modifications to the applicant specifying the reasons for it, and

(b) allow the applicant at least 14 days within which to make submissions to IPART about the proposed refusal or modifications.

(3) On determining an application for an approval, IPART must ensure notice of the determination is given to the applicant and published on IPART’s website.

s 7B: Ins 2021 No 26, Sch 1[4].

7C Grant of scheme approval

7C Grant of scheme approval

(1) A scheme approval must not be granted unless IPART is satisfied as to each of the following—

(a) the infrastructure will, if constructed as authorised by the approval, be fit for purpose and capable of operating—

(i) safely and reliably, and

(ii) in a way consistent with the national safety guidelines for the control of public health risks, and

(iii) in a way that does not present a significant risk of harm to the environment,

(b) the applicant has established it is highly likely the proposed scheme will become financially viable to operate within a reasonable period of time and will then remain financially viable for the life of the scheme,

(c) the applicant has established, for a regulated scheme, that it is not reasonably foreseeable that the operation of the scheme will have significant adverse financial implications for small retail customers,

(d) the proposed registered operator of the scheme—

(i) if the applicant is the proposed registered operator, holds an appropriate operator licence, and

(ii) if the applicant is not the proposed registered operator, has entered into an agreement with the applicant for the operation of the scheme,

(e) the applicant has established that the proposed area of operations of the scheme is appropriate,

Note.

IPART may consider a proposed area of operations is not appropriate if—

(a) the scheme is unlikely to be capable of supplying water supply or sewerage services to all premises within the proposed area of operations within a reasonable period, or

(b) the proposed area of operations excludes premises within the outermost boundary of, or near, the area of operations, including, for example, by excluded enclaves or unusual boundaries, unless the exclusion is reasonable, having regard to the characteristics of the proposed scheme, the characteristics of the premises or the services already available to the premises.

(f) for a scheme proposed to be constructed in stages—the applicant has established that the group of premises proposed to be serviced by each stage is reasonable having regard to the orderly and economic use and development of land in the area,

(g) matters prescribed by the regulations.

(2) In determining an application for a scheme approval, IPART must have regard to the following—

(a) whether disciplinary action against the proposed registered operator is pending or, as a result of disciplinary action against the proposed registered operator, the proposed registered operator is prohibited from being registered as the registered operator under a further scheme approval,

(b) whether, in the reasonable suspicion of IPART, a statutory default within the meaning of Division 6 has occurred within 2 years before the determination is made, and the proposed registered operator, or a related corporation of the proposed registered operator, is the alleged defaulter,

(c) the proposed registered operator, or a related corporation of the proposed registered operator, has failed to provide a service, or a connection to infrastructure, after granting a certificate of compliance relating to the service or infrastructure.

Note.

Section 5A also requires the decision-maker to have regard to the objects of this Act and other additional objects when considering whether or not an approval or licence is to be granted or varied under this Part and what conditions are to be imposed on an approval or licence.

(3) On the grant of the scheme approval, IPART must—

(a) register the proposed registered operator referred to in subsection (1)(d) as the registered operator for the scheme, and

(b) consider whether to make a determination under section 54 that the scheme is essential infrastructure.

(4) For the purposes of this section, disciplinary action is pending from the time when notice is given to the licensee requiring the licensee to show cause why disciplinary action should not be taken against the licensee until—

(a) disciplinary action is taken against the licensee, or

(b) the decision is made that disciplinary action will not be taken against the licensee.

s 7C: Ins 2021 No 26, Sch 1[4].

7D Grant of operational approval

7D Grant of operational approval

(1) An operational approval must not be granted unless IPART is satisfied as to each of the following—

(a) the infrastructure has been substantially constructed as authorised by a scheme approval for the infrastructure,

(b) the infrastructure is fit for purpose and is capable of operating—

(i) safely and reliably, and

(ii) in a way consistent with the national safety guidelines for the control of public health risks, and

(iii) in a way that does not present a significant risk of harm to the environment,

(c) there are adequate plans and systems in place to ensure the infrastructure continues to be fit for purpose and operated—

(i) safely and reliably, and

(ii) in a way consistent with the national safety guidelines for the control of public health risks, and

(iii) in a way that does not present a significant risk of harm to the environment,

(d) the infrastructure is capable of operating in compliance with this Act and the regulations, the plans and systems referred to in paragraph (c) and the conditions of the registered operator’s operator licence,

(e) if the infrastructure is or is likely to be essential infrastructure—a last resort provider has been designated for each essential service provider,

(f) the applicant is the registered operator or has entered into an agreement with the registered operator for the operation of the infrastructure,

(g) in relation to a regulated scheme, the applicant—

(i) holds a retailer licence or is a council, or

(ii) has entered into an agreement with a public water utility or an appropriately authorised licensed retailer for the sale of the water or sewerage services provided by the infrastructure,

(h) matters prescribed by the regulations.

(2) In determining an application for an operational approval, IPART must have regard to the following—

(a) whether disciplinary action against the proposed registered retailer is pending or, as a result of disciplinary action against the proposed registered retailer, the proposed registered retailer is prohibited from being registered as the registered retailer under a further operational approval,

(b) whether, in the reasonable suspicion of IPART, a statutory default within the meaning of Division 6 has occurred within 2 years before the determination was made, and the proposed registered retailer, or a related corporation of the proposed registered retailer, is the alleged defaulter.

Note.

Section 5A also requires the decision-maker to have regard to the objects of this Act and other additional objects when considering whether or not an approval or licence is to be granted or varied under this Part and what conditions are to be imposed on an approval or licence.

(3) On the grant of the operational approval, IPART must—

(a) unless already registered, register the person referred to in subsection (1)(f) as the registered operator for the scheme, and

(b) register the person referred to in subsection (1)(g) as the registered retailer for the scheme.

(4) For the purposes of this section, disciplinary action is pending from the time when notice is given to the licensee requiring the licensee to show cause why disciplinary action should not be taken against the licensee until—

(a) disciplinary action is taken against the licensee, or

(b) the decision is made that disciplinary action will not be taken against the licensee.

s 7D: Ins 2021 No 26, Sch 1[4].

7E Grant of approval—general

7E Grant of approval—general

(1) IPART may refuse to grant an approval if not satisfied—

(a) the proposed registered operator of the infrastructure has the capacity to comply with the conditions of its operator licence, having regard to all the infrastructure it operates or will operate under the licence, or

(b) for a regulated scheme—the proposed licensed retailer of water or sewerage services provided by means of the scheme has the capacity to comply with conditions of its retailer licence, having regard to all the water and sewerage services it sells or will sell under its licence, or

(c) about other matters IPART considers relevant, having regard to the public interest.

(2) Before determining an application, IPART may require an application audit to be undertaken.

s 7E: Ins 2021 No 26, Sch 1[4].

7F Approval to specify certain matters

7F Approval to specify certain matters

(1) A scheme approval must specify the following—

(a) the area (the area of operations) within which the water industry infrastructure, including a reticulation network connected to the infrastructure, is authorised to be constructed,

(b) the location that the water industry infrastructure, other than pipelines within the reticulation network connected to the infrastructure, is authorised to be constructed,

(c) the class or classes of water industry infrastructure authorised by the approval,

(d) the design capacity of the water industry infrastructure, as expressed in kilolitres per day, authorised by the approval,

(e) the purposes for which the water industry infrastructure is intended to be operated after its construction,

(f) for a scheme to be constructed in stages—

(i) the water industry infrastructure authorised to be constructed in each stage, and

(ii) the part of the area of operations within which the infrastructure is authorised to be constructed in each stage.

(2) An operational approval must specify the following—

(a) the scheme and scheme approval to which it applies,

(b) the purposes for which the water industry infrastructure is authorised to be operated,

(c) for a scheme that is to be constructed in stages, the stage or stages to which the operational approval applies.

(3) The same land may be within the area of operations of more than one approval.

s 7F: Ins 2021 No 26, Sch 1[4].

7G Conditions of approval—imposition, variation and revocation

7G Conditions of approval—imposition, variation and revocation

(1) The authority conferred by an approval is subject to the following—

(a) conditions imposed by this Act,

(b) conditions imposed by the regulations,

(c) conditions imposed by IPART on the grant of an approval or subsequently under this Act.

(2) IPART may, on the application of the registered operator of water industry infrastructure to which an approval applies or on its own initiative, impose further conditions on the approval or vary or revoke conditions of the approval, other than conditions imposed by this Act or the regulations.

(3) If IPART proposes to impose further conditions on, or vary or revoke conditions of, an approval on its own initiative, IPART must—

(a) give written notice of the proposal to the registered operator of the infrastructure concerned specifying the reasons for it, and

(b) allow the registered operator at least 14 days within which to make submissions to IPART about the proposal.

(4) If IPART considers it appropriate to invite submissions on a proposal or application to impose further conditions on or vary or revoke conditions of an approval because of the importance or effect of the conditions, IPART may invite submissions on the proposal or application as if it were an application for an approval.

(5) Before determining an application to impose further conditions on, or vary or revoke conditions of, an approval, IPART may require an application audit to be undertaken.

(6) Subject to the expression of a contrary intention, the following regulations apply to approvals whether granted before or after the regulations are made—

(a) regulations imposing conditions on an approval,

(b) regulations varying or revoking conditions of an approval imposed by the regulations.

Note.

Section 5A also requires that the decision-maker have regard to the objects of this Act and other additional objects when considering whether or not an approval is to be granted or varied under this Part and what conditions are to be imposed on an approval.

s 7G: Ins 2021 No 26, Sch 1[4].

7H Conditions of scheme approval

7H Conditions of scheme approval

(1) Without limiting section 7G, conditions of a scheme approval imposed by the regulations or by IPART may require the following—

(a) completion of the construction of the infrastructure in accordance with specified plans and specifications,

(b) the giving and maintaining of security, in an amount and form determined by IPART, for compliance with the conditions of approval and the completion of the construction of the infrastructure,

(c) the maintaining of insurance of a type and at a level specified in the condition,

(d) the completed infrastructure to meet specified criteria for safe and reliable operation and the protection of the environment and public health,

(e) the installation of individual meters for each household or business,

(f) the testing, certification or auditing of the infrastructure,

(g) the submission to IPART of notifications relating to the infrastructure,

(h) the preparation of plans or systems for operation of the scheme.

(2) A registered operator constructing water industry infrastructure to which this Part applies must—

(a) comply with the conditions of the relevant scheme approval, and

(b) ensure compliance with the conditions by other persons who are engaged by or act on behalf of the registered operator or for whom the registered operator is otherwise responsible in connection with the construction of the infrastructure.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

s 7H: Ins 2021 No 26, Sch 1[4].

7I Conditions of operational approval

7I Conditions of operational approval

(1) Without limiting section 7G, conditions of an operational approval imposed by the regulations or by IPART may require the following—

(a) the operation of the infrastructure in accordance with specified plans and systems and other requirements,

(b) the infrastructure to meet specified criteria for safe and reliable operation and the protection of the environment and public health.

(2) A registered operator operating water industry infrastructure to which this Part applies must—

(a) comply with the conditions of the relevant operational approval and the relevant scheme approval, and

(b) ensure compliance with the conditions by other persons who are engaged by or act on behalf of the registered operator or for whom the registered operator is otherwise responsible in connection with the operation of the infrastructure.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

s 7I: Ins 2021 No 26, Sch 1[4].

7J Duration of approval

7J Duration of approval

An approval remains in force until it is cancelled or surrendered.

s 7J: Ins 2021 No 26, Sch 1[4].

7K Variation of approval

7K Variation of approval

(1) An application may be made to IPART for the variation of an approval.

Note.

Section 12 imposes requirements for an application and allows an application to be rejected if the requirements are not complied with.

(2) An application for the variation of an approval may be made only by the applicant for the approval or the registered operator of the scheme.

(3) An application for the variation of an approval may relate to an aspect of the approval, including a matter required to be specified under section 7F.

(4) IPART must invite submissions on a proposed variation from the registered operator of the infrastructure if the registered operator is not the applicant and may invite submissions from persons IPART considers appropriate.

(5) An invitation to make submissions must allow at least 14 days for submissions to be made and must be accompanied by a copy of the application or indicate how a copy of the application may be obtained.

(6) IPART is to determine an application for variation by approving the variation, either as applied for or with modifications IPART considers appropriate, or by refusing to approve the variation.

(7) IPART must refuse to approve a variation of an approval if an application for the approval as proposed to be varied would be required to be refused under section 7C(1)(a) or 7D(1)(a)–(d).

Note.

Section 5A also requires that the decision-maker have regard to the objects of this Act and other additional objects when considering whether or not an approval is to be granted or varied under this Part and what conditions are to be imposed on an approval.

(8) IPART may refuse to approve a variation on 1 or more grounds on which an application for the approval as proposed to be varied would be permitted to be refused.

(9) IPART is not to approve a variation of an approval if in its opinion the proposed variation is so significant as to be better dealt with by a fresh application for the approval.

Note.

If IPART refuses to vary an approval, a new approval can be applied for.

(10) If IPART proposes to refuse to approve the variation of an approval, IPART must—

(a) give written notice of the proposed refusal to the applicant and, if the registered operator was not the applicant, to the registered operator of the infrastructure, specifying the reasons for the proposed refusal, and

(b) allow each person given notice of the proposed refusal at least 14 days to make submissions to IPART about the proposed refusal.

(11) If IPART approves a variation of an approval—

(a) IPART is to give notice of the variation to the applicant and, if the registered operator was not the applicant, to the registered operator of the infrastructure, for the variation, and

(b) the varied approval replaces the original approval as from the date determined by IPART to be the registration date of the variation.

(12) Before determining an application to vary an approval, IPART may require an application audit to be undertaken.

(13) To avoid doubt, a variation of an approval is not required for additional pipeline reticulation within a scheme’s area of operations.

(14) If IPART is satisfied an approval contains an obvious error or mis-description, IPART may grant a replacement approval to correct the error or mis-description.

(15) On granting a replacement approval, IPART must ensure notice of the grant of the replacement approval is given to the applicant and published on IPART’s website.

s 7K: Ins 2021 No 26, Sch 1[4]. Am 2024 No 47, Sch 2.14.

7L Staged approval

7L Staged approval

(1) An approval may be granted—

(a) for the activity or one or more of the activities for which the approval is sought, or

(b) for an activity, except for a specified part or aspect of the activity, or

(c) for a specified part or aspect of an activity.

(2) An approval may be granted subject to a condition that an activity or a specified part or aspect of an activity, or a thing associated with the activity or the carrying out of the activity, must be the subject of either one or both of the following—

(a) a further approval,

(b) a variation of an existing approval.

(3) In this section, activity means—

(a) in relation to a scheme approval—the construction of water industry infrastructure to which this Part applies, and

(b) in relation to an operational approval—the operation of water industry infrastructure to which this Part applies.

s 7L: Ins 2021 No 26, Sch 1[4].

Division 4 Licences

Division 4 Licences

pt 2, div 4: Ins 2021 No 26, Sch 1[4].

8 Operator licence

8 Operator licence

An operator licence authorises the construction and operation of water industry infrastructure of the class specified in the licence for which the licensee is the registered operator.

Note.

Operator licences are granted by the Minister.

s 8: Subst 2021 No 26, Sch 1[4].

8A Retailer licence

8A Retailer licence

A retailer licence authorises the sale of water or sewerage services provided by means of water industry infrastructure for which the licensee is the registered retailer.

Note.

Retailer licences are granted by the Minister.

s 8A: Ins 2021 No 26, Sch 1[4].

8B Applying for a licence

8B Applying for a licence

(1) An application for a licence is to be made to IPART and determined by the Minister.

(2) On receiving an application for a licence, IPART must—

(a) give a copy of the application to the Minister, and

(b) invite submissions on the application from persons as required by the regulations, and

(c) invite submissions on the application from the public by notice published on IPART’s website and otherwise as considered appropriate by IPART.

Note.

Section 12 imposes requirements for an application and allows an application to be rejected if the requirements are not complied with.

(3) An invitation to make submissions on an application must allow at least 28 days for submissions to be made and must be accompanied by a copy of the application, other than material IPART considers to be confidential, or set out how a copy of the application may be obtained.

(4) After considering an application for a licence and the submissions on the application, IPART is to provide a report on the application to the Minister.

(5) The report must include recommendations regarding the following—

(a) whether or not a licence should be granted,

(b) the licence conditions, if any, that should be imposed on the licence.

(6) IPART is not required to notify the applicant about, or give the applicant an opportunity to make submissions about, a report or proposed report to the Minister on an application despite a requirement of the rules of procedural fairness.

(7) Before providing a report on an application to the Minister, IPART may require an application audit to be undertaken.

(8) The Minister must consider, but is not bound to accept, IPART’s report and recommendations and may seek further advice from IPART on an application.

s 8B: Ins 2021 No 26, Sch 1[4].

8C Determining an application for a licence

8C Determining an application for a licence

(1) The Minister is to determine an application for a licence by granting the licence, either as applied for or with modifications the Minister considers appropriate, or by refusing to grant the licence.

Note.

Section 5A also requires the decision-maker to have regard to the objects of this Act and other additional objects when considering whether or not a licence is to be granted or varied under this Part and what conditions are to be imposed on a licence.

(2) A licence must be granted only to a corporation or council.

(3) A licence must not be granted unless the Minister is satisfied as to each of the following—

(a) that the applicant is a suitable corporation to be granted the licence,

(b) other matters specified by the regulations.

(4) The Minister may refuse to grant the licence for another reason the Minister considers relevant, having regard to the public interest.

(5) If the Minister proposes to refuse to grant a licence or to grant a licence with modifications, the Minister must—

(a) give written notice of the proposed refusal or modifications to the applicant specifying the reasons for the refusal or modifications, and

(b) allow the applicant at least 14 days within which to make submissions to the Minister about the proposed refusal or modifications.

(6) On making a decision on an application, the Minister must ensure notice of the Minister’s decision is given to the applicant and published on IPART’s website.

s 8C: Ins 2021 No 26, Sch 1[4].

8D Meaning of “suitable corporation”

8D Meaning of “suitable corporation”

(1) A corporation is a suitable corporation to be granted a licence under this Part only if the Minister has determined that—

(a) the corporation has the capacity, including technical, financial and organisational capacity, to comply with obligations under this Act and to carry out the activities to be authorised by the licence, and

(b) the corporation is otherwise suitable to be granted the licence, taking into account the mandatory considerations under this section and the non-mandatory considerations under this section that the Minister thinks appropriate.

(2) For the purpose of determining whether a council is a suitable corporation, the only relevant capacity for determination is technical capacity and none of the mandatory or non-mandatory considerations are to be taken into account.

(3) A council is a suitable corporation if the Minister has determined that the council has the technical capacity to comply with obligations under this Act and to carry out the activities to be authorised by the licence.

(4) A corporation is not a suitable corporation to be granted a licence if the corporation is a disqualified corporation.

(5) The following considerations are the mandatory considerations to be taken into account in determining whether a corporation is a suitable corporation to be granted a licence—

(a) whether an insolvency official has been appointed for the corporation or the whole or part of the property of the corporation, an order has been made for the winding-up of the corporation or a resolution has been passed for the winding-up of the corporation,

(b) whether the corporation or a director of the corporation has committed an offence against this Act or another law of this State, the Commonwealth, another State or a Territory relating to the water industry, public health, environment protection, development control or consumer protection,

(c) whether the corporation or a director of the corporation has held a statutory authorisation that has been cancelled or suspended or has been disqualified from obtaining a statutory authorisation,

(d) whether a director of the corporation is of good repute and character, having particular regard to honesty and integrity,

(e) whether a director of the corporation has become, within the previous 3 years, an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth,

(f) whether a director of the corporation has been, within the previous 3 years, the director of a body corporate when an insolvency official has been appointed for the corporation or the whole or part of the property of the corporation, an order has been made for the winding-up of the corporation or a resolution has been passed for the winding-up of the corporation,

(g) other matters prescribed by the regulations.

(6) The following considerations are the non-mandatory considerations that may be taken into account in determining whether a corporation is a suitable corporation to be granted a licence—

(a) each of the mandatory considerations for a related corporation of the corporation under consideration as if a reference in the mandatory considerations to the corporation were a reference to a related corporation of that corporation,

(b) each of the mandatory considerations for a person concerned in the management of the corporation under consideration as if a reference in the mandatory considerations to a director of the corporation were a reference to a person concerned in the management of the corporation,

(c) whether the corporation is a related corporation of a disqualified corporation,

(d) other considerations the Minister considers relevant.

(7) For the purposes of determining whether a corporation has the relevant capacity to be a suitable corporation to be granted a licence, the following must be taken into account—

(a) the extent to which the corporation relies on arrangements with contractors or subcontractors, including related corporations, for the necessary capacity,

(b) the suitability of the arrangements,

(c) proposed licence conditions relating to the arrangements.

(8) In this section, statutory authorisation means a licence, approval or other authorisation whether under the law of this State, the Commonwealth, another State or a Territory.

s 8D: Ins 2021 No 26, Sch 1[4].

8E Operator licences to specify certain matters

8E Operator licences to specify certain matters

An operator licence must specify the following—

(a) the activities authorised by the licence,

(b) the class or classes of water industry infrastructure authorised by the licence,

(c) the maximum number of schemes the licensee is authorised to construct or operate,

(d) the maximum scale of the schemes the licensee is authorised to construct or operate, whether determined by reference to the number of customers, connections, volumetric limits or otherwise.

s 8E: Ins 2021 No 26, Sch 1[4].

8F Retailer licences to specify certain matters

8F Retailer licences to specify certain matters

A retailer licence must specify the following—

(a) the activities authorised by the licence,

(b) the maximum scale of the schemes for which the licensee is authorised to act as retailer, whether determined by reference to the number of customers, connections or otherwise.

s 8F: Ins 2021 No 26, Sch 1[4].

8G Licence conditions—imposition, variation and revocation

8G Licence conditions—imposition, variation and revocation

(1) A licence is subject to the following conditions—

(a) conditions imposed by this Act,

(b) conditions imposed by the regulations,

(c) conditions imposed by the Minister on the grant of the licence or subsequently under this Act.

Note.

Section 12 imposes requirements for an application and allows an application to be rejected if the requirements are not complied with.

(2) The Minister may, by written notice to a licensee, impose further conditions on, or vary or revoke conditions of, the licence, other than conditions imposed by this Act or the regulations—

(a) on the application of the licensee, or

(b) on the recommendation of IPART, or

(c) on the Minister’s own initiative.

Note.

Section 5A also requires the decision-maker to have regard to the objects of this Act and other additional objects when considering whether or not a licence is to be granted or varied under this Part and what conditions are to be imposed on a licence.

(3) Nothing in Part 3 limits the power of the Minister to impose licence conditions.

(4) If the Minister proposes to impose further conditions on, or vary or revoke conditions of, a licence on the recommendation of IPART or on the Minister’s own initiative, the Minister must—

(a) give written notice of the proposal to the licensee specifying the reasons for it, and

(b) allow the licensee at least 14 days within which to make submissions to the Minister about the proposal.

(5) If the Minister considers it is appropriate to invite submissions on a proposal or application to impose further licence conditions or vary or revoke licence conditions because of the importance or effect of the conditions, IPART must, at the request of the Minister, invite submissions on the proposal or application as if it were an application for a licence.

(6) An application by a licensee to impose further licence conditions or vary or revoke licence conditions is to be made to IPART and determined by the Minister.

(7) After considering an application by a licensee to impose further licence conditions or vary or revoke licence conditions, IPART is to provide a report on the application to the Minister.

(8) Before providing a report to the Minister on an application by the licensee to impose further licence conditions or vary or revoke licence conditions, IPART may require an application audit to be undertaken.

(9) Regulations that impose licence conditions or vary or revoke licence conditions imposed by the regulations apply, subject to the expression of a contrary intention, to licences whether granted before or after the regulations are made.

s 8G: Ins 2021 No 26, Sch 1[4].

8H Operator licence conditions

8H Operator licence conditions

(1) The following conditions are conditions of an operator licence—

(a) the licensee must comply with the conditions of each approval that applies to water industry infrastructure for which the licensee is the registered operator,

(b) the licensee must ensure the water industry infrastructure for which the licensee is the registered operator is operated only for the purposes authorised by the relevant approval,

(c) the licensee must operate water industry infrastructure for which the licensee is the registered operator—

(i) safely and reliably, and

(ii) in a way consistent with the national safety guidelines for the control of public health risks, and

(iii) in a way that does not present an significant risk of harm to the environment,

(d) the licensee must have and maintain the capacity, including technical, financial and organisational capacity, to operate all the infrastructure for which the licensee is the registered operator,

(e) the licensee must give written notice to IPART of a failure by the licensee to maintain technical, financial or organisational capacity as soon as practicable after the failure occurs,

(f) if the licensee proposes to cease or ceases to operate water industry infrastructure for which the licensee is the registered operator, the licensee must give written notice to IPART of that fact within the period required by the regulations,

(g) the licensee must establish and maintain privacy policies and practices that lawfully enable customer information to be provided to and used by the following—

(i) a last resort provider in connection with a declared failure or last resort contingency planning,

(ii) another licensee who is substituted as the registered operator for the scheme.

(h) if the licensee is the registered operator of a regulated scheme, but is not the registered retailer for the scheme, the licensee must—

(i) ensure a water or sewerage service provided by means of the scheme is not sold except by the registered retailer for the scheme or a public water utility, and

(ii) if the water or sewerage service provided by means of the scheme is sold by a registered retailer—maintain and give effect to an agreement with the registered retailer, being an agreement that complies with the requirements of the regulations, if any, for the sale by the registered retailer of the water or sewerage services,

(i) if the licensee is the registered operator of a scheme, the licensee must, for essential infrastructure, take all reasonable steps to prevent circumstances arising that permit a declaration of a failure of an essential service provider under Part 5, Division 3.

(2) Without limiting section 8G, conditions imposed on an operator licence by the regulations or the Minister may require the following—

(a) the licensee to give and maintain security, in an amount and form determined by the Minister, for compliance with licence conditions,

(b) the licensee to maintain an appropriate level of insurance, taking into account all the water industry infrastructure operated by the licensee under the licence,

(c) the licensee to supply to IPART statements that detail the following—

(i) the extent to which the licence, or the provisions of this Act or the regulations, have or have not been complied with,

(ii) the particulars of failures to comply with the licence or provisions,

(iii) the reasons for failures to comply with the licence or provisions,

(iv) actions taken, or to be taken, to prevent a recurrence of the failures or to mitigate the effects of the failures.

s 8H: Ins 2021 No 26, Sch 1[4].

8I Retailer licence conditions

8I Retailer licence conditions

(1) The following conditions are conditions of a retailer licence—

(a) if the licensee proposes to cease, or ceases, to provide retail services under the licence for a particular regulated scheme, the licensee must give written notice to IPART of that fact within the period required by the regulations,

(b) the licensee must have and maintain the capacity, including financial and organisational capacity, to provide all the retail services provided by the licensed retailer under the licence,

(c) the licensee must give IPART written notice of a failure by the licensee to maintain technical, financial or organisational capacity as soon as practicable after the failure occurs,

(d) the licensee must establish and maintain privacy policies and practices that lawfully enable customer information to be provided to and used by the following—

(i) a last resort provider in connection with a declared failure or last resort contingency planning,

(ii) another licensee who is substituted as the registered retailer for the scheme.

(2) Without limiting section 8G, conditions imposed on a retailer licence by the regulations or the Minister may require the following—

(a) the licensee to give and maintain security, in an amount and form determined by the Minister, for compliance with licence conditions,

(b) the licensee to maintain an appropriate level of insurance, taking into account all the retail services provided by the licensee under the licence,

(c) the licensee to obtain the approval of the Minister or IPART before entering into an agreement with the registered operator for a regulated scheme for the sale of further water or sewerage services provided by means of the regulated scheme,

(d) if the licence authorises the sale of drinking water—for the purpose of promoting the equitable sharing of the costs of State water security among public water utilities and licensed retailers of drinking water, the following—

(i) the licensee to obtain a specified proportion of the water that it supplies under the authority of its licence by means of specified water industry infrastructure,

(ii) the licensee to contribute to the costs of specified water industry infrastructure, whether or not it is supplied with water from that infrastructure, calculated in a way specified in the regulations or by condition and payable to a person or persons specified in the regulations or by condition,

(e) the licensee to supply to IPART statements that detail the following—

(i) the extent to which the licence, or the provisions of this Act or the regulations, have or have not been complied with,

(ii) the particulars of failures to comply with the licence or provisions,

(iii) the reasons for failures to comply with the licence or provisions,

(iv) actions taken, or to be taken, to prevent a recurrence of the failures or to mitigate the effects of the failures.

s 8I: Ins 2021 No 26, Sch 1[4].

8J Offence—failure to comply with licence conditions

8J Offence—failure to comply with licence conditions

A licensee must comply with the conditions of the licence.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

s 8J: Ins 2021 No 26, Sch 1[4].

8K Composite operator and retailer licences

8K Composite operator and retailer licences

(1) An operator licence and retailer licence may be applied for and granted together as the component licences of a composite licence.

(2) An application for a composite licence is to be dealt with and determined as if it were an application for each of the component licences of the composite licence.

(3) A composite licence operates as both the operator licence and retailer licence that are its component licences and each of the licences is, as a component licence, subject to the conditions to which it would be subject as a separate licence.

(4) The regulations may make provision for the following—

(a) the circumstances in which an operator licence and retailer licence may or must be applied for as a composite licence,

(b) the splitting of a composite licence into its component licences.

s 8K: Ins 2021 No 26, Sch 1[4].

8L Duration of licence

8L Duration of licence

(1) A licence remains in force until it is cancelled or it is surrendered by the licensee with the consent of the Minister.

(2) A licence that is suspended does not authorise the following while suspended but otherwise remains in force for the purposes of this Act—

(a) for an operator licence—the operation of water industry infrastructure, or

(b) for a retailer licence—the sale of water or sewerage services provided by means of water industry infrastructure.

s 8L: Ins 2021 No 26, Sch 1[4].

8M Variation of licence

8M Variation of licence

(1) An application for the variation of a licence may be made to IPART for determination by the Minister.

Note.

Section 12 imposes requirements for an application and allows an application to be rejected if the requirements are not complied with.

(2) An application for the variation of a licence may be made only by the licensee.

(3) An application for the variation of a licence can relate to an aspect of the licence, including to a matter required to be specified in sections 8E and 8F, as applicable.

(4) Before determining an application to vary a licence, IPART may require an application audit to be undertaken.

(5) If the Minister is satisfied that a licence contains an obvious error or mis-description, the Minister may grant a replacement licence to correct the error or mis-description.

(6) On granting a replacement licence, the Minister must ensure notice of the grant of the replacement licence is given to the applicant and published on IPART’s website.

s 8M: Ins 2021 No 26, Sch 1[4].

8N Annual fees and returns

8N Annual fees and returns

(1) A licensee must, in each year before the date fixed for that purpose by the Minister by written notice—

(a) pay to the Minister the annual licence fee determined by the Minister, and

(b) lodge with IPART an annual return containing the information required by—

(i) the Minister, or

(ii) IPART.

(2) The Minister may, by written notice, require information in an annual return be verified in a specified way.

(3) IPART may, by written notice, require specified information in an annual return be verified in a specified way.

(4) If a licensee fails to pay a fee or lodge a return as required, the Minister may, by written notice, require the licensee to make good the default and, in addition, pay the Minister the amount fixed by the regulations as a penalty for default.

(5) A matter specified in a written notice under this section may be varied by a further written notice.

s 8N: Ins 2021 No 26, Sch 1[4].

8O Surrender of licence

8O Surrender of licence

(1) A licence may be surrendered with the consent of the Minister.

(2) The Minister must consent to the surrender of a licence unless otherwise required under this section.

(3) If, on application for consent to the surrender of a licence, the Minister is satisfied further steps are necessary for the protection of public health or safety, the environment or small retail customers, the Minister—

(a) must not consent to the surrender of the licence, and

(b) must impose further licence conditions the Minister considers appropriate for the protection of public health or safety, the environment or small retail customers, as applicable (protection conditions).

(4) The Minister may consent to the surrender of the licence referred to in subsection (3) on the licensee satisfying the Minister that the protection conditions have been fulfilled or satisfactory arrangements have been made for their fulfilment.

(5) If the licensee provides an essential service under the licence, the Minister must not consent to the surrender of the licence unless the Minister is satisfied satisfactory arrangements are in place for the continued provision of the service.

s 8O: Ins 2021 No 26, Sch 1[4].

8P Transfer of licence

8P Transfer of licence

A licence is not transferable.

s 8P: Ins 2021 No 26, Sch 1[4].

Division 5 Special provisions addressing risk to public health or safety

Division 5 Special provisions addressing risk to public health or safety

pt 2, div 5: Ins 2021 No 26, Sch 1[4].

9 Public health and safety directions

9 Public health and safety directions

(1) A regulatory authority may, if of the reasonable opinion it is necessary to deal with a risk to public health or safety arising from the construction or operation of water industry infrastructure to which this Part applies, give a direction (public health and safety direction) to a person requiring specified action to be taken to manage, reduce or eliminate the risk.

(2) A public health and safety direction may be given orally or in writing.

(3) Without limiting the public health and safety directions that may be given, if in the opinion of the regulatory authority the risk is sufficiently serious to warrant it, the directions may require cessation of operation of the infrastructure.

(4) Before giving a public health and safety direction, the regulatory authority must, unless the urgency of the circumstances preclude it, consult with the Minister responsible for the administration of the Public Health Act 2010, or that Minister’s nominee, and SafeWork NSW.

(5) If a person contravenes a public health and safety direction, the regulatory authority concerned may arrange for the required action to be taken by a person authorised by IPART to take the action.

(6) A person who contravenes a public health and safety direction must pay the regulatory authority concerned an amount equal to the reasonable cost of action taken under subsection (5).

(7) A person who contravenes a public health and safety direction is guilty of an offence.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

s 9: Am 2010 No 127, Sch 4.23. Subst 2021 No 26, Sch 1[4].

Division 6 Enforcement and cancellation of approvals and licences

Division 6 Enforcement and cancellation of approvals and licences

pt 2, div 6: Ins 2021 No 26, Sch 1[4].

10 Statutory default

10 Statutory default

(1) A statutory default occurs if—

(a) a person contravenes a requirement of this Act to hold a licence or obtain an approval, or

(b) a licensee contravenes this Act or the regulations, including a condition of a licence or approval, or

(c) a licence is improperly obtained, or

(d) an event occurs or circumstances come to light that mean the licensee would not be granted the licence if an application for the licence were now to be made.

(2) Action may be taken against a person under this Division for a statutory default even though the person has since ceased to hold a licence.

s 10: Am 2011 No 66, Sch 1 [6]. Subst 2021 No 26, Sch 1[4].

10A Effect of criminal proceedings

10A Effect of criminal proceedings

(1) A regulatory authority may exercise its powers under this Division in relation to a statutory default whether or not criminal proceedings have been, or are to be, taken for the default and even though a penalty may have already been imposed for the default.

(2) However, the regulatory authority must, in imposing a monetary penalty, take into account a fine that has already been imposed in criminal proceedings.

s 10A: Ins 2021 No 26, Sch 1[4].

10B Compliance notice

10B Compliance notice

(1) If a statutory default occurs, IPART may give written notice (a compliance notice) to the alleged defaulter specifying the default and requiring the alleged defaulter to take specified action, within a period specified in the notice, to remedy or mitigate the consequences of the default or to prevent the continuance or recurrence of the default.

(2) Without limiting the action that may be specified, a compliance notice may—

(a) require a notice to be given to customers or to be published, or

(b) require an audit and compliance program to be undertaken, or

(c) require a training program to be undertaken.

(3) If the alleged defaulter fails to take the specified action within the time allowed in the notice, the alleged defaulter is guilty of an offence.

Maximum penalty—

(a) for a corporation—18,000 penalty units, or

(b) for an individual—3,500 penalty units.

(4) IPART is not required to give an alleged defaulter an opportunity to make submissions on a compliance notice or proposed compliance notice before it is given despite a requirement of the rules of procedural fairness.

s 10B: Ins 2021 No 26, Sch 1[4].

10C Injunctive remedies

10C Injunctive remedies

(1) If a statutory default occurs or there are reasonable grounds to suspect that a statutory default may occur or be attempted, the Supreme Court may, on application by IPART, grant an injunction to prevent the statutory default or to prevent recurrence of the statutory default.

(2) The injunction may be granted on terms the Court considers appropriate.

(3) An injunction may be granted under this section whether or not—

(a) there has been some previous statutory default of the same or a similar nature, or

(b) there is imminent danger of substantial damage to a person.

(4) No undertaking as to damages can be required of IPART in proceedings under this section.

s 10C: Ins 2021 No 26, Sch 1[4].

10D Disciplinary action by IPART

10D Disciplinary action by IPART

(1) If a statutory default occurs, IPART may give written notice to the alleged defaulter specifying the default and requiring the alleged defaulter to show cause, within a period specified in the notice, why disciplinary action should not be taken against the alleged defaulter.

(2) IPART must allow at least 14 days for written submissions to be made, or provide for a hearing at which oral submissions may be made, to IPART by—

(a) the alleged defaulter, and

(b) a related corporation or person—if an allegation in relation to the statutory default is made against—

(i) the related corporation of the alleged defaulter, or

(ii) a person who is a director or person concerned in the management of the alleged defaulter or the related corporation of the alleged defaulter.

(3) After considering submissions made by the alleged defaulter, IPART may, by order, do 1 or more of the following (a disciplinary action)—

(a) censure the alleged defaulter,

(b) impose a fine on the alleged defaulter of up to—

(i) for a corporation—4,500 penalty units, or

(ii) for an individual—1,000 penalty units,

(c) order the forfeiture to the Crown of the whole or part of security given under this Act by the alleged defaulter,

(d) for an approval—

(i) impose further conditions or vary conditions of the approval, or

(ii) suspend the approval for a specified period, until the fulfilment of specified conditions or until further order of the authority, or

(iii) with the written concurrence of the Minister—cancel the approval,

(e) for a licence, with the written concurrence of the Minister—

(i) impose further licence conditions or vary the licence conditions, including by imposing a condition that prohibits the licensee from providing a particular service under the licence, or

(ii) suspend the licence for a specified period, until the fulfilment of specified conditions or until further order of the authority, or

(iii) prohibit the licensee being registered as the registered operator under a further scheme approval for a specified period, until the fulfilment of specified conditions or until further order of the authority, or

(iv) cancel the licence,

(f) declare that the alleged defaulter, or a related corporation of the alleged defaulter, is a disqualified corporation for a specified period, or until the fulfilment of specified conditions or until further order of the authority,

(g) declare that a person who is a director or concerned in the management of the alleged defaulter or a related corporation of the alleged defaulter is a disqualified individual for a specified period, until the fulfilment of specified conditions or until further order of the authority.

(4) If the alleged defaulter owns essential infrastructure or provides an essential service, IPART must, in determining the appropriate disciplinary action to take and the date when it is to take effect, consider whether there are suitable arrangements in place for the continuity of the service.

(5) Disciplinary action takes effect on the date the order is served on the alleged defaulter or on a later date specified in the order.

(6) If a statutory default comprises an offence for which a penalty notice may be issued, a penalty notice has been issued for the default and the penalty has been paid, no fine may be imposed under subsection (3)(b) for the default.

s 10D: Ins 2021 No 26, Sch 1[4].

10E Disciplinary action by Minister

10E Disciplinary action by Minister

(1) If a statutory default has occurred and IPART has not taken disciplinary action under section 10D, not including giving a written notice under section 10D(1), the Minister may give IPART a written notice requiring IPART to take disciplinary action against the alleged defaulter, within a period specified in the notice.

(2) If IPART does not take disciplinary action within the specified period—

(a) section 10D is to be read as if references to IPART were references to the Minister, and

(b) the Minister may accordingly take action under that section in relation to the statutory default, and

(c) IPART may not take action under that section in relation to the statutory default.

s 10E: Ins 2021 No 26, Sch 1[4].

10F Court orders in addition to penalty

10F Court orders in addition to penalty

(1) If, in proceedings for an offence under this Act, the court finds the defendant contravened this Part, the court may, in addition to the imposition of a penalty, do one or more of the following—

(a) order the person to take specified action to remedy or mitigate the consequences of the contravention or to prevent the continuance or recurrence of the contravention,

(b) order the person to take specified action to publicise the contravention and its consequences and a compliance notice or other order made against the person,

(c) order the person to pay a public authority reasonable costs and expenses incurred by the authority in taking action to remedy or mitigate the consequences of the contravention,

(d) order the person to pay to a person, other than a public authority, reasonable costs and expenses incurred by the person, or compensation of an amount determined by the court for injury, loss or damage suffered by the person, as a result of the contravention,

(e) order the person to pay reasonable costs and expenses incurred during the investigation of the contravention, including costs and expenses in taking samples or conducting inspections, tests, measurements or analysis, or transporting, storing or disposing of evidence,

(f) order the person to pay an amount not exceeding the court’s estimation of the amount of the economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention.

(2) An economic benefit obtained by delaying or avoiding costs is to be taken to be an economic benefit acquired by the person, or accrued or accruing to the person, as a result of a contravention if the contravention can be attributed, in whole or in part, to that delay or avoidance.

(3) The court may, by an order under this section, fix a period for compliance and impose other requirements the court considers necessary or expedient for enforcement of the order.

(4) The Local Court—

(a) may not make an order under subsection (1)(e), and

(b) may not make an order under this section for the payment of an amount that exceeds in total the amount for which an order may be made by the court when exercising jurisdiction under the Civil Procedure Act 2005.

s 10F: Ins 2021 No 26, Sch 1[4].

10G Cancellation of approval and forfeiture of security

10G Cancellation of approval and forfeiture of security

(1) There are grounds for the cancellation of an approval under this section if—

(a) for a scheme approval—

(i) 5 years have elapsed since the grant of the approval and the construction of the infrastructure has not substantially commenced, or

(ii) there is no longer an intention to construct or bring into operation water industry infrastructure as proposed, or

(b) for an operational approval—operation of the infrastructure under this Act has ceased on a permanent basis or it is intended that operation of the infrastructure under this Act cease on a permanent basis.

(2) However, an approval for essential infrastructure may not be cancelled—

(a) in circumstances that may result in a declared failure or in which a failure of a provider of the essential service may be declared, or

(b) during a declared failure of a provider of the essential service, or

(c) in circumstances in which directions may be given to an insolvency official under Part 5, Division 3 in relation to a provider of the essential service.

(3) IPART may, by written notice given to the registered operator of water industry infrastructure, require the operator to show cause, within a period specified in the notice, being a period of not less than 14 days—

(a) if IPART is acting on its own initiative—why a scheme approval or operational approval for the infrastructure should not be cancelled and the security given by the registered operator, if any, be forfeited, or

(b) if the registered operator has applied for the cancellation of a scheme approval or operational approval for the infrastructure—why the security given by the registered operator, if any, should not be forfeited.

(4) IPART must allow the registered operator to show cause by making written submissions to IPART or by providing for a hearing at which the registered operator may make oral submissions to IPART.

(5) After considering submissions made by the registered operator, if IPART is satisfied there are grounds for the cancellation of an approval—

(a) IPART may—

(i) cancel the approval, or

(ii) impose further conditions on the approval and cancel the approval only after the registered operator has satisfied IPART that the further conditions have been fulfilled or that satisfactory arrangements have been made for their fulfilment, and

(b) IPART may order the forfeiture to the Crown of the whole or part of the security given by the registered operator under this Act.

s 10G: Ins 2021 No 26, Sch 1[4].

10H Cancellation of approval in public interest

10H Cancellation of approval in public interest

(1) The Minister may, by written notice to a registered operator of an approval, cancel the approval if the Minister considers the cancellation to be in the public interest.

(2) Another Minister or IPART may make a written recommendation to the Minister that the cancellation of an approval is in the public interest.

(3) The notice must specify whether the cancellation is on the Minister’s own initiative or on the written recommendation of another Minister or IPART.

(4) Cancellation may apply to the whole or a specified part of the water industry infrastructure to which the approval relates.

(5) Cancellation takes effect on the day specified in the notice of cancellation.

(6) In determining when the cancellation is to take effect, the Minister is to consider the public interest and, if the cancellation is on the recommendation of another Minister or IPART, that Minister’s or IPART’s reasons for the recommendation.

(7) The registered operator of an approval may bring proceedings for compensation in the Supreme Court—

(a) if the cancellation was on the Minister’s own initiative or on the recommendation of IPART—against the Minister, or

(b) if the cancellation was on the written recommendation of another Minister—against that Minister.

(8) The Supreme Court is to hear the proceedings and determine whether it is just for compensation to be paid to the plaintiff because of the cancellation.

(9) If the Supreme Court determines it is just for compensation to be paid, the Supreme Court must determine the amount of compensation and give judgment accordingly.

s 10H: Ins 2021 No 26, Sch 1[4].

Division 7 Administrative review and appeal

Division 7 Administrative review and appeal

pt 2, div 7: Ins 2021 No 26, Sch 1[4].

11 Administrative review by Civil and Administrative Tribunal

11 Administrative review by Civil and Administrative Tribunal

(1) An application in accordance with this section may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision under this Part specified in this section.

(2) An applicant for an approval may apply for an administrative review of a decision of IPART—

(a) refusing to grant an approval or granting an approval with modifications not agreed to by the applicant, or

(b) refusing to accept a variation of an application after an invitation to make submissions has been given, or

(c) fixing conditions of an approval.

(3) A registered operator of a scheme, the owner of water industry infrastructure forming part of a scheme or the owner of the land on which water industry infrastructure forming part of a scheme is located, other than pipelines within the reticulation network connected to the infrastructure, may apply for an administrative review of a decision of IPART relating to the scheme—

(a) varying an approval or refusing to approve a variation of an approval, or

(b) refusing to vary or revoke conditions of an approval, or

(c) refusing to give a consent or grant an approval required by conditions of an approval, or

(d) varying or imposing further conditions of an approval, or

(e) refusing to cancel an approval on application.

(4) An applicant for a licence may apply for an administrative review of a decision of the Minister—

(a) refusing to grant a licence or granting a licence with modifications not agreed to by the applicant, or

(b) fixing conditions of a licence.

(5) A licensee may apply for an administrative review of a decision of the Minister—

(a) refusing to vary the classes of infrastructure that may be operated under the licence, or

(b) refusing to vary or revoke licence conditions, or

(c) refusing to give a consent or grant an approval required by licence conditions, or

(d) varying or imposing further licence conditions, or

(e) refusing to consent to the surrender of the licence.

(6) In determining an application for an administrative review of a decision under this Part, the Civil and Administrative Tribunal is to decide what the correct and preferable decision is—

(a) having regard to the material available to the decision-maker at the time of the decision, and

(b) disregarding new material or new evidence provided by the applicant.

(7) Subsection (6) has effect despite the provisions of the Administrative Decisions Review Act 1997 and the Civil and Administrative Tribunal Act 2013.

s 11: Subst 2021 No 26, Sch 1[4].

11A Appeal to Land and Environment Court

11A Appeal to Land and Environment Court

(1) The following appeals may be made to the Land and Environment Court against a decision under this Part—

(a) a person to whom a compliance notice is issued by the Minister or IPART may appeal against the decision to issue the notice,

(b) a person against whom disciplinary action is taken by the Minister or IPART may appeal against the decision to take that action,

(c) the registered operator of an approval that is cancelled on the initiative of the Minister or IPART may appeal against the decision to cancel the approval,

(d) a person against whom an order for forfeiture of security is made may appeal against the decision to make the order or as to the amount to be forfeited.

(2) An appeal is to be made in accordance with the rules of court, but may not be made more than 21 days after the day on which written notice of the decision is served on the person.

(3) Subject to an order made by the Land and Environment Court, an appeal does not operate to stay the decision to which the appeal relates.

(4) Despite the Land and Environment Court Act 1979, section 39(3), in determining an appeal against a decision under this Part, the Land and Environment Court is not to have regard to new material or new evidence provided by the appellant that was not available to the person who made the decision to which the application relates at the time of the decision.

s 11A: Ins 2021 No 26, Sch 1[4].

Division 8 Miscellaneous

Division 8 Miscellaneous

pt 2, div 8: Ins 2021 No 26, Sch 1[4].

12 Applications

12 Applications

(1) An application under this Part, other than under Division 7—

(a) must be made in the way and be accompanied by the information—

(i) in relation to an application for an approval—specified by IPART, or

(ii) in another case—specified by the Minister, and

(b) in relation to an application for an approval—must set out the proposed area of operations for the approval, and

(c) must comply with the requirements set out in the regulations, and

(d) must be accompanied by the fee determined for the application by the Minister.

(2) The Minister or IPART may, by written notice to an applicant, require the applicant—

(a) to give the Minister or IPART additional information reasonably required to decide the application, or

(b) to have information in the application or additional information verified in a specified way.

(3) An applicant must establish to the satisfaction of IPART that the State is authorised to use, by the giving of a licence or warranty or otherwise, free of charge for the purposes of this Act, including the publication of a notice, copyright material that is part of or provided by the applicant in connection with the application.

(4) If an application or the applicant does not comply with the requirements of this section or the regulations, the application may be rejected.

(5) An application that is rejected is taken not to have been made.

s 12: Subst 2021 No 26, Sch 1[4].

12A Only one registered retailer permitted for each regulated scheme

12A Only one registered retailer permitted for each regulated scheme

(1) IPART may only register one registered retailer for each separate service provided by regulated scheme.

(2) In this section, separate service means—

(a) drinking water service,

(b) recycled water service,

(c) sewerage service.

s 12A: Ins 2021 No 26, Sch 1[4].

13

13–20 (Repealed)

Part 3 Access to infrastructure services

Part 3 Access to infrastructure services

21 Object of Part

21 Object of Part

The object of this Part is to establish a scheme to promote the economically efficient use and operation of, and investment in, significant water industry infrastructure, thereby promoting effective competition in upstream or downstream markets.

22 Part applies only to scheduled areas

22 Part applies only to scheduled areas

(1) This Part applies to and in respect of water industry infrastructure that is situated in, on or over land referred to in Schedule 1 (a scheduled area).

(2) The Minister may, by order published on the NSW legislation website, amend Schedule 1 so as to add more scheduled areas or include more land in existing scheduled areas.

s 22: Am 2009 No 56, Sch 4.80.

23 Declaration criteria

23 Declaration criteria

For the purposes of this Part, the following criteria are declaration criteria in relation to an infrastructure service provided by water industry infrastructure—

(a) that the infrastructure is of State significance, having regard to its nature and extent and its importance to the State economy,

(b) that it would not be economically feasible to duplicate the infrastructure,

(c) that access (or an increase in access) to the service by third parties is necessary to promote a material increase in competition in an upstream or downstream market,

(d) that the safe use of the infrastructure by access seekers can be ensured at an economically feasible cost and, if there is a safety requirement, that appropriate regulatory arrangements exist,

(e) that access (or an increase in access) to the service would not be contrary to the public interest.

24 Applications for coverage declaration

24 Applications for coverage declaration

(1) An application for a coverage declaration for an infrastructure service may only be made by or on behalf of one of the following—

(a) the service provider for that service,

(b) an access seeker in relation to that service who has tried, but failed—

(i) to obtain access to that service, or

(ii) to obtain a change to some aspect of the person’s existing access to that service,

(c) the Minister, in the case only of a service provided by a public water utility.

(2) In the case of a service the subject of an existing coverage declaration, an application for the renewal of the declaration may also be made by any person currently having access to the service.

(3) A coverage application—

(a) must be in such form as the Minister may approve, and

(b) must be accompanied by such fee as the Minister may determine, and

(c) must be lodged at the office of IPART.

25 Consideration of coverage applications by IPART

25 Consideration of coverage applications by IPART

(1) On receiving a coverage application, IPART—

(a) must furnish a copy of the application to the Minister, and

(b) must furnish copies of the application to, and invite submissions on the application from, such other persons as are prescribed by the regulations, and

(c) must invite submissions on the application from the public.

(2) After considering the application and any such submissions, IPART must furnish a report on the application to the Minister.

(3) Such a report—

(a) must include a statement of IPART’s opinion as to whether or not the declaration criteria are met in relation to the service to which the application relates, and

(b) if IPART’s opinion is that all of those criteria are met, a recommendation as to the terms in which a coverage declaration should be made and the period for which it should have effect.

(4) IPART must use its best endeavours to ensure that a report on the application is provided within 4 months after the application is made.

(5) This section does not apply to—

(a) a coverage application for an infrastructure service that is the subject of a binding non-coverage declaration or an access undertaking, or

(b) a coverage application that IPART determines, with the consent of the Minister, to be frivolous or vexatious.

26 Determination of coverage applications by Minister

26 Determination of coverage applications by Minister

(1) The Minister must determine a coverage application—

(a) if satisfied—

(i) that all of the declaration criteria are met in relation to the service to which the application relates, and

(ii) that the service is not the subject of a binding non-coverage declaration or an access undertaking,

by making a coverage declaration in relation to the service, or

(b) if not so satisfied, by refusing to make such a declaration.

(2) The Minister must consider, but is not bound to accept, any advice or recommendation in IPART’s report on the application and may, if circumstances so require, seek further advice from IPART in relation to the application.

(3) A coverage declaration need not be in the terms sought by the coverage application, and may apply to a greater or lesser extent than that so sought.

(4) The Minister must use his or her best endeavours to ensure that a decision on a coverage application is made within 6 months after the date on which the application was lodged with IPART.

(5) On making a decision under this section, the Minister must cause notice of the decision, and of the reasons for the decision, to be given to IPART.

(6) On receiving such notice, IPART must cause the information contained in the notice, together with its report on the coverage application, to be made available to the public on IPART’s internet website.

27 Period for which coverage declarations to have effect

27 Period for which coverage declarations to have effect

(1) A coverage declaration must state the period for which it is to have effect.

(2) Subject to its renewal under section 26, or to its revocation under section 30, a coverage declaration has effect until the end of that period.

(3) A coverage declaration does not have effect in relation to an infrastructure service while the service is the subject of an access undertaking.

28 Applications for revocation of coverage declaration

28 Applications for revocation of coverage declaration

(1) An application for the revocation of a coverage declaration for an infrastructure service may only be made by or on behalf of the service provider for that service.

(2) A revocation application—

(a) must be in such form as the Minister may approve, and

(b) must be accompanied by such fee as the Minister may determine, and

(c) must be lodged at the office of IPART.

29 Consideration of revocation applications by IPART

29 Consideration of revocation applications by IPART

(1) On receiving a revocation application, IPART—

(a) must furnish a copy of the application to the Minister, and

(b) must furnish copies of the application to, and invite submissions on the application from, such other persons as are prescribed by the regulations, and

(c) must invite submissions on the application from the public.

(2) After considering the application and any such submissions, IPART must furnish a report on the application to the Minister.

(3) Such a report must include a statement of IPART’s opinion as to whether or not the declaration criteria are met in relation to the service to which the application relates.

(4) IPART must use its best endeavours to ensure that a report on the application is provided within 4 months after the application is made.

(5) This section does not apply to a revocation application that IPART determines, with the consent of the Minister, to be frivolous or vexatious.

30 Determination of revocation applications by Minister

30 Determination of revocation applications by Minister

(1) The Minister must determine a revocation application—

(a) if satisfied that any of the declaration criteria are not met in relation to the service to which the application relates, by revoking the coverage declaration for the service, or

(b) if not so satisfied, by refusing to make such a declaration.

(2) The Minister must consider, but is not bound to accept, any advice or recommendation in IPART’s report on the application and may, if circumstances so require, seek further advice from IPART in relation to the application.

(3) A revocation declaration need not be in the terms sought by the revocation application, and may apply to a greater or lesser extent than that so sought.

(4) The Minister must use his or her best endeavours to ensure that a decision on a revocation application is made within 6 months after the date on which the application was lodged with IPART.

(5) On making a decision under this section, the Minister must cause notice of the decision, and of the reasons for the decision, to be given to IPART.

(6) On receiving such notice, IPART must cause the information contained in the notice, together with its report on the revocation application, to be made available to the public on IPART’s internet website.

(7) A revocation declaration takes effect on the day specified in the declaration in that regard.

31 Application of Division

31 Application of Division

(1) This Division applies to infrastructure services to be provided by—

(a) proposed water industry infrastructure, being infrastructure (other than a minor extension to existing infrastructure) that is not currently constructed, or

(b) existing infrastructure that is not currently used, or

(c) existing infrastructure that is currently used otherwise than for the production, treatment, filtration, storage, conveyance or reticulation of water or sewage,

but does not apply to infrastructure services provided by existing water industry infrastructure.

(2) For the purposes of determining a binding non-coverage application, the references to currently in subsection (1) are references to the time when the application is made.

32 Applications for binding non-coverage declaration

32 Applications for binding non-coverage declaration

(1) An application for a binding non-coverage declaration for an infrastructure service—

(a) may only be made by or on behalf of the service provider for that service, and

(b) may not be made after the water industry infrastructure by means of which the service is to be provided has been commissioned.

(2) A binding non-coverage application—

(a) must be in such form as the Minister may approve, and

(b) must be accompanied by such fee as the Minister may determine, and

(c) must be lodged at the office of IPART.

33 Consideration of binding non-coverage applications by IPART

33 Consideration of binding non-coverage applications by IPART

(1) On receiving a binding non-coverage application, IPART—

(a) must furnish a copy of the application to the Minister, and

(b) must furnish copies of the application to, and invite submissions on the application from, such other persons as are prescribed by the regulations, and

(c) must invite submissions on the application from the public.

(2) After considering the application and any such submissions, IPART must furnish a report on the application to the Minister.

(3) Such a report—

(a) must include a statement of IPART’s opinion as to whether or not the declaration criteria are met in relation to the service to which the application relates, and

(b) if IPART’s opinion is that any of those criteria are not met, a recommendation as to the terms in which a binding non-coverage declaration should be made and the period for which it should have effect.

(4) IPART must use its best endeavours to ensure that a report on the application is provided within 4 months after the application is made.

(5) This section does not apply to—

(a) a binding non-coverage application for an infrastructure service that is the subject of a coverage declaration or an access undertaking, or

(b) a binding non-coverage application that IPART determines, with the consent of the Minister, to be frivolous or vexatious.

34 Determination of binding non-coverage applications by Minister

34 Determination of binding non-coverage applications by Minister

(1) The Minister must determine a binding non-coverage application—

(a) if satisfied—

(i) that any of the declaration criteria are not met in relation to the service to which the application relates, and

(ii) that the service is not the subject of a coverage declaration or an access undertaking,

by making a binding non-coverage declaration in relation to the service, or

(b) if not so satisfied, by refusing to make such a declaration.

(2) The Minister must consider, but is not bound to accept, any advice or recommendation in IPART’s report on the application and may, if circumstances so require, seek further advice from IPART in relation to the application.

(3) The Minister must use his or her best endeavours to ensure that a decision on a binding non-coverage application is made within 6 months after the date on which the application was lodged with IPART.

(4) On making a decision under this section, the Minister must cause notice of the decision, and of the reasons for the decision, to be given to IPART.

(5) On receiving such notice, IPART must cause the information contained in the notice, together with its report on the binding non-coverage application, to be made available to the public on IPART’s internet website.

35 Period for which binding non-coverage declarations to have effect

35 Period for which binding non-coverage declarations to have effect

(1) A binding non-coverage declaration must state the period (not exceeding 10 years) for which it is to have effect.

(2) Subject to its renewal under section 34, or to its revocation under section 37, a binding non-coverage declaration has effect until the end of that period.

(3) A binding non-coverage declaration does not have effect in relation to an infrastructure service while the service is the subject of an access undertaking.

36 Binding non-coverage declarations have effect only for complying infrastructure

36 Binding non-coverage declarations have effect only for complying infrastructure

A binding non-coverage declaration does not have effect unless the water industry infrastructure to which it relates, when used for the storage, conveyance or reticulation of water or sewage—

(a) has substantially the same capacity, and

(b) serves substantially the same geographical locations,

as those specified in the application for the declaration.

37 Revocation of binding non-coverage declaration

37 Revocation of binding non-coverage declaration

The Minister may revoke a binding non-coverage declaration—

(a) if the service provider for the service to which the declaration relates requests the Minister to revoke the declaration, or

(b) if the application for the declaration contained false or misleading information or failed to contain information that it was required to contain.

38 Access undertakings

38 Access undertakings

(1) A service provider may give IPART an access undertaking with respect to any one or more of its infrastructure services (whether or not it has begun providing them and whether or not they are the subject of coverage declarations).

(2) An access undertaking is to be in the form of a document that sets out the service provider’s arrangements for the provision of access to its infrastructure services.

(3) Those arrangements must provide for any disputes concerning the provision of access to its infrastructure services to be referred to IPART for resolution in accordance with section 40.

(4) An access undertaking does not have effect until it has been approved by IPART.

(5) On receiving an application for approval of an access undertaking, IPART must invite public submissions on the application.

(6) In deciding whether to approve a service provider’s access undertaking, IPART must have regard to the following—

(a) the legitimate business interests of the service provider,

(b) the public interest, including the public interest in having competition in markets,

(c) the interests of prospective access seekers,

(d) any other matters that IPART considers relevant.

Note.

See also section 41 in relation to the application of pricing principles and section 92 in relation to IPART’s guidelines as to the exercise of its functions under this section.

(7) An access undertaking has effect for the period specified in the undertaking in that regard, and may only be varied during that period with the consent of IPART.

(8) A service provider must keep its access undertakings available for inspection by members of the public, free of charge, during normal office hours.

(9) It is sufficient compliance with subsection (8) if copies of the access undertakings are made available to the public on the service provider’s internet website.

(10) Copies of an access undertaking are to be made available to members of the public, at cost, during normal office hours.

39 Access agreements

39 Access agreements

(1) The terms on which a service provider is to provide access to an infrastructure service the subject of a coverage declaration or an access undertaking are to be set out—

(a) in an agreement between the service provider and the access seeker, or

(b) if no such agreement can be reached, in an access determination.

(2) A provision of an access agreement is void to the extent to which it purports—

(a) to prohibit a service provider from providing a service the subject of a coverage declaration or an access undertaking to any person, whether or not the person is a party to the agreement, or

(b) to prohibit a service provider from providing a service the subject of a coverage declaration or an access undertaking to some persons on more advantageous terms than those on which it provides the same service to other persons, or

(c) to prohibit or restrict any person from giving information to IPART or the Minister pursuant to any requirement under this or any other Act, or from creating documents for the purpose of recording information for that purpose.

40 Access determinations

40 Access determinations

(1) If a dispute exists between a service provider and an access seeker—

(a) as to the terms on which the access seeker is to be given access (or an increase in access) to a service the subject of a coverage declaration or an access undertaking, or

(b) as to any matter arising under an access agreement that provides for a dispute as to that matter to be dealt with in accordance with this section, or

(c) as to any matter arising under a determination under this section,

either party to the dispute may apply to IPART for the dispute to be determined by arbitration.

Note.

Pursuant to section 24B of the Independent Pricing and Regulatory Tribunal Act 1992 (as applied by subsection (5)), the arbitrator for such a dispute may be IPART or some other person appointed by IPART to arbitrate the dispute.

(2) IPART may refuse to accept such an application if it is not satisfied that the applicant has, in good faith, attempted to resolve the dispute by negotiation.

(3) At any time after commencement of proceedings on an application under this section, the arbitrator may require the service provider to cause notice of the proceedings to be given to all other persons to which the service provider provides access to the service concerned.

(4) Subject to this section and the regulations, the Commercial Arbitration Act 2010 applies to an arbitration under this section, and to any determination arising from an arbitration under this section, as if a reference in that Act to an award were a reference to a determination under this section.

(5) Sections 24B–24E of the Independent Pricing and Regulatory Tribunal Act 1992 apply to an arbitration under this section in the same way as they apply to an arbitration under section 24A of that Act, and so apply as if—

(a) a reference in those sections to a government agency were a reference to a service provider, and

(b) section 24B (2) and (3) (b) and (c) of that Act were omitted,

except that section 15 of that Act does not apply in relation to any determination arising from an arbitration under this section.

(6) In considering the terms of a proposed determination, the arbitrator must have regard to such matters as are prescribed by the regulations.

Note.

See also section 41 in relation to the application of pricing principles.

(7) Before making a determination, the arbitrator—

(a) must cause copies of the proposed determination to be given to each of the parties to the dispute, and

(b) must give each of the parties an opportunity to make submissions to the arbitrator in relation to the proposed determination.

(8) Subject to subsection (9), the arbitrator must use his or her best endeavours to determine the dispute within 6 months after the application for the dispute to be determined was made to IPART.

(9) If the access seeker seeks access in relation to any activity for which it would require, but does not yet hold, a licence under Part 2—

(a) the arbitrator may adjourn proceedings for such time as the arbitrator considers reasonable for the purpose of enabling the access seeker to obtain such a licence, and

(b) if the access seeker fails to obtain such a licence within that time, may make a determination refusing the access sought.

(10) In making a determination under this section—

(a) the arbitrator must give effect to any access undertaking to which the service concerned is subject, and

(b) the arbitrator must not include in the determination any provision that requires a service provider to do, or not to do, anything that would put it in breach of its obligations under any existing access determination or under this or any other Act or law.

(11) On making a determination under this section, the arbitrator must cause a notice of the making of the determination (which notice must include a summary of the determination) to be given to IPART.

(12) On receiving such a notice, IPART must cause the information contained in the notice to be made available to the public on IPART’s internet website.

s 40: Am 2010 No 61, Sch 2.21 [1].

41 Pricing principles

41 Pricing principles

(1) For the purposes of this Part—

(a) IPART must have regard to the pricing principles when deciding whether or not to approve an access undertaking for an infrastructure service, and

(b) an arbitrator must have regard to the pricing principles when determining a dispute in relation to the pricing of access to an infrastructure service the subject of a coverage declaration.

(2) For the purposes of this section, the pricing principles in relation to any infrastructure service are as follows—

(a) the price of access should generate expected revenue for the service that is at least sufficient to meet the efficient costs of providing access to the service, and include a return on investment commensurate with the regulatory and commercial risks involved,

(b) the price of access should allow multi-part pricing and price discrimination when it aids efficiency,

(c) the price of access should not allow a vertically integrated service provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent to which the cost of providing access to other operators is higher,

(d) the price of access should provide incentives to reduce costs or otherwise improve productivity.

(3) These principles must be implemented in a manner that is consistent with any relevant pricing determinations for the supply of water and the provision of sewerage services, including (where applicable) the maintenance of “postage stamp pricing” (that is, a system of pricing in which the same kinds of customers within the same area of operations are charged the same price for the same service).

42 Service providers to have approved cost allocation manuals

42 Service providers to have approved cost allocation manuals

(1) Within 3 months after an infrastructure service becomes the subject of a coverage declaration, the service provider—

(a) must keep separate accounts for such of its infrastructure services as are the subject of the declaration, and

(b) must submit a cost allocation manual to IPART in relation to that infrastructure.

(2) A cost allocation manual must be in the form of a document that, in accordance with any rules under subsection (3), sets out the basis on which the service provider proposes to establish and maintain accounts for those of its infrastructure services as are the subject of a coverage declaration.

(3) The Minister may from time to time, by order published in the Gazette, establish rules for the preparation of cost allocation manuals.

(4) IPART may approve a service provider’s cost allocation manual as submitted, or may require the service provider to amend it and resubmit it for approval.

(5) On and from the expiry of 3 months from the date on which IPART approves a service provider’s cost allocation manual in relation to infrastructure services the subject of a coverage declaration, the service provider must ensure that costs are allocated between each of those services, and between those services and its other activities, in accordance with the manual.

(6) A cost allocation manual may only be varied with the consent of IPART.

(7) A service provider must keep its cost allocation manual available for inspection by members of the public, free of charge, during normal office hours.

(8) It is sufficient compliance with subsection (7) if a copy of the cost allocation manual is made available to the public on the service provider’s internet website.

(9) Copies of the cost allocation manual are to be made available to members of the public, at cost, during normal office hours.

(10) A service provider must not fail to comply with the requirements of this section.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) for an individual—100 penalty units.

s 42: Am 2021 No 26, Sch 1[5].

43 Hindering access to certain services

43 Hindering access to certain services

(1) The provider or a user of a service the subject of a coverage declaration or an access undertaking, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering any other person from obtaining or exercising rights of access to the service.

Maximum penalty—

(a) for a corporation—500 penalty units, or

(b) for an individual—100 penalty units.

(2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances.

(3) Subsection (2) does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).

(4) In this section, a user of a service includes a person who has a right to use the service.

s 43: Am 2021 No 26, Sch 1[6].

44 Register of infrastructure services

44 Register of infrastructure services

(1) IPART is to maintain a register of—

(a) infrastructure services the subject of coverage declarations, and

(b) infrastructure services the subject of binding non-coverage declarations, and

(c) infrastructure services the subject of access undertakings.

(2) The regulations may make provision with respect to the manner and form in which the register is to be kept and the nature of the information to be included in the register.

(3) IPART must keep the register available for inspection by members of the public, free of charge, during normal office hours.

(4) It is sufficient compliance with subsection (3) if a copy of the register is made available to the public on IPART’s internet website.

(5) Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours.

Part 4 Sewer mining

Part 4 Sewer mining

45 Application of Part

45 Application of Part

This Part applies to sewerage infrastructure whose service provider—

(a) has lodged with IPART a notice—

(i) that sets out the service provider’s policy as to whether, and on what terms, it will permit sewer miners to draw from the contents of the infrastructure, and

(ii) that indicates that the service provider is willing to allow disputes as to its granting or refusal of such permission to be referred to IPART for arbitration, and

(b) has not subsequently lodged with IPART any notice that indicates that the service provider is no longer willing to allow such disputes to be so referred.

46 Sewer mining determinations

46 Sewer mining determinations

(1) If a dispute exists between a service provider and a sewer miner—

(a) as to the terms of any agreement under which the sewer miner is to be permitted to draw from the contents of the service provider’s sewerage infrastructure, or

(b) as to any matter arising under an agreement referred to in paragraph (a) that provides for a dispute as to that matter to be dealt with in accordance with this section, or

(c) as to any matter arising under a determination under this section,

either party to the dispute may apply to IPART for the dispute to be determined by arbitration.

(2) The dispute may be dealt with by IPART or by such other person as IPART may nominate to arbitrate the dispute.

(3) At any time after commencement of proceedings on an application under this section, the arbitrator may require the service provider to cause notice of the proceedings to be given to other persons permitted to draw from the contents of the service provider’s sewerage infrastructure.

(4) Subject to this section and the regulations, the Commercial Arbitration Act 2010 applies to an arbitration under this section, and to any determination arising from an arbitration under this section, as if a reference in that Act to an award were a reference to a determination under this section.

(5) In considering the terms of a proposed determination, the arbitrator—

(a) must give effect to the service provider’s policy with respect to the granting of permission to draw from the contents of its sewerage infrastructure, and

(b) subject to paragraph (a), must have regard to such matters as are prescribed by the regulations.

(6) Before making a determination, the arbitrator—

(a) must cause copies of the proposed determination to be given to each of the parties to the dispute, and

(b) must give each of the parties an opportunity to make submissions to the arbitrator in relation to the proposed determination.

(7) The arbitrator must use his or her best endeavours to determine the dispute within 6 months after the application for the dispute to be determined is made to IPART.

(8) On making a determination under this section, the arbitrator must cause a notice of the determination (which notice must include a summary of the determination) to be given to IPART.

(9) On receiving such a notice, IPART must cause the information contained in the notice to be made available to the public on IPART’s internet website.

s 46: Am 2010 No 61, Sch 2.21 [2].

Part 5 Operation of water industry market

Part 5 Operation of water industry market

pt 5, hdg: Am 2021 No 26, Sch 1[7].

Division 1AA Small retail customer contracts for regulated schemes

Division 1AA Small retail customer contracts for regulated schemes

pt 5, div 1AA: Ins 2021 No 26, Sch 1[8].

46AA Definitions

46AA Definitions

In this Division—

contract charge means a fee or charge payable by a customer under a contract with a licensed operator or licensed retailer for water or sewerage services.

lease means a lease, licence, permit or other agreement under which a person (the lessor) parts with possession of premises to another (the lessee).

regulated scheme licence means—

(a) an operator licence under which the licensee operates infrastructure that connects a regulated scheme to a customer’s premises, or

(b) a retailer licence.

standard contract charges of a licensed operator or licensed retailer means the contract charges of the licensee referred to in section 46AC.

s 46AA: Ins 2021 No 26, Sch 1[8].

46AB Deemed customer contracts for regulated schemes

46AB Deemed customer contracts for regulated schemes

(1) A small retail customer who is the owner of premises to which water or sewerage services are provided by means of a regulated scheme is taken to have entered into a contract for the services with the following persons on the terms and conditions set out in the regulations and for the standard contract charges of the licensee (the deemed customer contract)—

(a) the registered operator of the infrastructure that connects the scheme to the premises, and

(b) the registered retailer for that infrastructure.

(2) However, a deemed customer contract is not taken to have been entered into if the connection of the premises to the scheme is an unauthorised connection.

(3) A connection is an unauthorised connection if it was not authorised by the registered operator of the infrastructure at or before the time of connection.

(4) The registered operator of infrastructure may subsequently approve a connection that was unauthorised at the time of connection and the connection then ceases to be an unauthorised connection.

(5) A deemed customer contract is not taken to have been entered into to the extent that it would conflict with an order in force under section 83.

(6) The regulations may make provision for or about the following—

(a) requiring the registered operator of infrastructure that connects a scheme to premises to notify the registered retailer for the infrastructure when the premises are connected to the scheme,

(b) exempting a registered operator or registered retailer, or a class of registered operators or registered retailers, conditionally or unconditionally, from the operation of this section,

(c) enabling IPART to modify or exclude the application of the deemed customer contract for a registered operator or registered retailer, or a class of registered operators or registered retailers, generally or in specified circumstances,

(d) fees for making applications for exemptions from the operation of this section.

s 46AB: Ins 2021 No 26, Sch 1[8].

46AC Standard contract charges for regulated schemes

46AC Standard contract charges for regulated schemes

(1) It is a condition of a regulated scheme licence that the licensee must, for each regulated scheme for which the licensee provides services under the licence—

(a) publish on its website—

(i) the contract charges payable for the services during the current financial year and the subsequent 3 financial years, and

(ii) the rebates, refunds, discounts or similar payments available to customers, or classes of customers, for the services during the current financial year, and

(iii) if the contract charges are to be varied—the date from which the charges as varied become payable, and

(b) give IPART written notice of the contract charges, and of a variation of the contract charges and reason for the variation, and

(c) only charge customers the contract charges, and

(d) only pay a rebate, refund, discount or similar payment to a customer in accordance with—

(i) the deemed customer contract taken to have been entered into under section 46AB, or

(ii) a publication made under paragraph (a)(ii).

(2) The publication of information under subsection (1)(a) must be made in a way that is—

(a) conspicuous to customers, and

(b) specified by the regulations, if any.

(3) It is a condition of a regulated scheme licence that the licensee must give each customer at least 3 months written notice, or a shorter period of notice approved by IPART on application, of an increase in a contract charge payable by the customer.

(4) For a licensed retailer, it is a condition of the licence that the notice must be sent with, or included in, an account or invoice for a service provided under the licence.

(5) No amount of an increase in a contract charge may be recovered by the licensee from a customer if notice of the increase has not been given to the customer as required by this section.

(6) Notice of an increase in a contract charge payable for a service by a customer is not required under this section if—

(a) the increase does not exceed a maximum increase prescribed by the regulations, by reference to a consumer price index or other method, or

(b) the increase is in accordance with a determination under Division 2, or

(c) the licensee has complied with a regulated price parity arrangement for the increase.

(7) A regulated price parity arrangement for an increase in a contract charge payable for a service is an arrangement under which the licensee—

(a) has a policy of maintaining price parity with the pricing of a comparable service of a public water utility whose services are the subject of a determination of pricing by IPART, and

(b) within 28 days of IPART commencing an investigation for the purposes of a determination of the pricing for a comparable service of the public water utility, notifies the customer—

(i) the investigation has commenced, and

(ii) the contract charge payable for the service by the customer will not exceed the maximum price determined by IPART or in accordance with the methodology determined by IPART for that comparable service.

s 46AC: Ins 2021 No 26, Sch 1[8].

46AD Certificates as to amounts due under customer contract

46AD Certificates as to amounts due under customer contract

(1) It is a condition of a regulated scheme licence that the licensee must, on application and payment of the fee fixed by the licensee and approved by IPART, issue the applicant a certificate—

(a) containing particulars of the contract charges payable to the licensee for water or sewerage services provided to specified premises as at a specified date, or

(b) to the effect that there are no contract charges payable.

(2) An application for a certificate must—

(a) be written, and

(b) specify the name and address of the applicant, and

(c) identify the premises to which the application relates.

(3) A certificate of a licensee is conclusive proof, in favour of a purchaser in good faith and for value of the premises to which the certificate relates, that, at the date specified in the certificate, no contract charges were payable to the licensee for water or sewerage services provided to the premises other than the amounts specified in the certificate.

s 46AD: Ins 2021 No 26, Sch 1[8].

46AE New owner liable for unpaid charges under customer contract on change of ownership of premises

46AE New owner liable for unpaid charges under customer contract on change of ownership of premises

On a change of ownership of premises to which water or sewerage services are provided by means of a regulated scheme, the new owner of the premises is liable for the amount of unpaid contract charges, if any, for the services owed to a licensed operator or licensed retailer as if the new owner had entered into the contract under which the charges are owed.

s 46AE: Ins 2021 No 26, Sch 1[8].

46AF Lessee may pay and recover charges under customer contract

46AF Lessee may pay and recover charges under customer contract

If water or sewerage services are provided to premises by means of a regulated scheme and a lease of the premises provides, expressly or impliedly, that the lessor of the premises is to pay contract charges to a licensed operator or licensed retailer, the lessee may pay to the licensed operator or licensed retailer the charges that are due but unpaid by the lessor and may—

(a) recover the amount paid from the lessor as a debt due to the lessee, or

(b) deduct the amount paid from the rent, licence fee or other occupation fee payable by the lessee to the lessor.

s 46AF: Ins 2021 No 26, Sch 1[8].

46A Definition

46A Definition

In this Division—

entitled person means any of the following—

(a) an owner or occupier of land affected by the exercise (or proposed exercise) of a function under Division 2 of Part 6,

(b) any other person of a class prescribed by the regulations.

s 46A: Ins 2011 No 66, Sch 1 [11].

47 Internal review of certain decisions disputed by small retail customers

47 Internal review of certain decisions disputed by small retail customers

(1) A small retail customer may apply to a licensed operator or licensed retailer for a review of the following—

(a) a matter arising under a contract for water or sewerage services provided to the customer,

(b) the exercise or proposed exercise of powers under Part 6, Division 2 by or on behalf of the licensed operator,

(c) other matters prescribed by the regulations.

(2) The regulations—

(a) may establish the procedures for making an application and for dealing with an application, and

(b) may impose conditions on licences relating to the provision and implementation of procedures for dealing with an application, and

(c) may treat a failure to make a decision within a specified period as a decision of a particular kind.

(3) An application is to be made and dealt with free of charge to the applicant.

s 47: Am 2021 No 26, Sch 1[9] [10].

48 Review of decisions under approved ombudsman scheme

48 Review of decisions under approved ombudsman scheme

(1) A small retail customer and any entitled person may apply to the ombudsman for review of a decision in a dispute or complaint to which the scheme relates.

(2) Except as provided by the scheme or by the regulations, a person does not have a right of review under this section in respect of a decision for which a review may be sought under section 47 unless the decision has been the subject of review under that section.

(3) A review under this section is to be free of charge to small retail customers and to entitled persons.

(4) This section does not limit or otherwise affect the jurisdiction of the Civil and Administrative Tribunal.

(5) The ombudsman may decline to deal with a matter if it has been, is being or should be dealt with by another person or tribunal or there are, in the ombudsman’s opinion, not sufficient grounds for further investigation.

(6) Without limiting subsection (5), the ombudsman may deal with a matter by making arrangements for it to be referred to another person or tribunal.

s 48: Am 2011 No 66, Sch 1 [12] [13]; 2013 No 95, Sch 4.45.

49 Approved ombudsman scheme

49 Approved ombudsman scheme

(1) The Minister may approve an ombudsman scheme for the purposes of this Act, being a scheme that provides for the appointment of an ombudsman to deal with—

(a) disputes and complaints under contracts for water or sewerage services provided to small retail customers, and

(a1) (Repealed)

(b) disputes and complaints concerning the exercise, or proposed exercise, of functions under Part 6, Division 2, and

(c) other disputes and complaints of a class prescribed by the regulations, whether or not under contracts for water supply or sewerage services referred to in paragraph (a).

(2) Before approving such a scheme, the Minister must be satisfied that the scheme meets the following objectives—

(a) that all registered retailers and registered operators that are required to be members of the scheme are members of the scheme, have agreed to be bound by decisions of the ombudsman under the scheme and, as members, are so bound,

(b) that the scheme has satisfactory arrangements in place to deal with all disputes and complaints referred to in subsection (1),

(c) that the ombudsman will be able to operate independently of all registered retailers and registered operators in exercising functions under the scheme,

(d) that the scheme will be accessible to small retail customers and entitled persons,

(e) that membership of the scheme will be accessible to all potential members and will provide appropriate representation for all members in relation to the scheme’s governing body,

(f) that, without limiting any other application of the scheme, the scheme will apply to all disputes and complaints arising under contracts for water supply or sewerage services,

(g) that the scheme will operate expeditiously and without cost to small retail customers and to entitled persons,

(h) that the scheme will allow small retail customers to choose whether or not they wish to be bound by determinations under the scheme,

(i) that the scheme will satisfy best practice benchmarks for schemes of a similar kind, both in terms of its constitution and procedure and in terms of its day to day operations,

(j) that the scheme will provide for a monetary limit on claims covered by the scheme of an amount or amounts approved by the Minister,

(k) that the scheme will maintain the capacity of the ombudsman, where appropriate, to refer disputes or complaints to other forums,

(l) that the scheme will require the ombudsman to inform the Minister of substantial breaches of this Act or the regulations, or the conditions of a licence, of which the ombudsman becomes aware,

(m) such other objectives as are prescribed by the regulations.

(3) A scheme may treat a failure to make a decision within a specified period as a decision of a particular kind.

(4) The Minister may at any time revoke an approval under this section.

(5) If the regulations prescribe a dispute or complaint involving a person other than a registered retailer or registered operator as a dispute or complaint to which an approved scheme may apply, the regulations may make it an offence for the person to fail to comply with a decision of the ombudsman under the scheme.

(6) Notice of any approval given by the Minister under this section, and of the revocation of any such approval, is to be published in the Gazette.

(7) Subject to this section, the same scheme may be approved for the purposes of both this Act and any other Act or law.

s 49: Am 2007 No 82, Sch 2.24; 2011 No 66, Sch 1 [14]–[18]; 2021 No 26, Sch 1[11]–[14].

50 Licence conditions relating to approved ombudsman scheme

50 Licence conditions relating to approved ombudsman scheme

(1) It is a condition of a retailer’s licence under which a licensed retailer provides water or sewerage services to small retail customers that—

(a) the licensed retailer must be a member of an approved ombudsman scheme, and

(b) the licensed retailer is bound by, and must comply with, any decision of the ombudsman under the scheme relating to a dispute or complaint involving the licensed retailer and a small retail customer.

(2) If an operator licence is a regulated scheme licence within the meaning of Division 1AA, it is a condition of the operator licence that—

(a) the licensed operator must be a member of an approved ombudsman scheme, and

(b) the operator is bound by, and must comply with, a decision of the ombudsman under the scheme relating to a dispute or complaint involving the operator and a small retail customer or entitled person.

s 50: Am 2011 No 66, Sch 1 [19] [20]; 2021 No 26, Sch 1[15]–[17].

50A Obligations of insolvency official

50A Obligations of insolvency official

If an insolvency official has been appointed for a licensed operator or licensed retailer, or the whole or a part of the property of a licensed operator or licensed retailer, the following provisions apply—

(a) a dispute or complaint about the licensee may, or may continue to, be dealt with under this Act,

(b) the insolvency official must facilitate the resolution of the complaint or dispute,

(c) the insolvency official is bound by this Act as if the insolvency official were the licensee.

s 50A: Ins 2021 No 26, Sch 1[18].

50B Definitions

50B Definitions

In this Division—

monopoly service means a water or sewerage service declared to be a monopoly service under this Division.

monopoly supplier means—

(a) a licensed operator that operates infrastructure by means of which a monopoly service is provided, or

(b) a licensed retailer that sells a monopoly service to a customer.

s 50B: Ins 2021 No 26, Sch 1[19].

51 Declaration of monopoly services

51 Declaration of monopoly services

(1) The Minister may, by order published in the Gazette, declare that a specified water or sewerage service provided or to be provided by means of a scheme is a monopoly service.

(2) The declaration may be limited to apply in relation to—

(a) a specified area, or

(b) a specified class of customers, or

(c) both.

(3) The declaration may only be made in relation to a service if the Minister is satisfied it is a service—

(a) for which there are no other suppliers to provide competition in the part of the market concerned, and

(b) for which there is no contestable market by potential suppliers in the short term in that part of the market.

(4) The declaration must be revoked if the Minister ceases to be satisfied as to the matter referred to in subsection (3)(a).

s 51: Subst 2021 No 26, Sch 1[19].

52 Pricing determinations for monopoly services

52 Pricing determinations for monopoly services

(1) IPART may, on a referral by the Minister, investigate, report on and determine a pricing methodology for a monopoly service, or a class of monopoly services, including a pricing methodology for connection charges relating to a monopoly service.

(2) Without limiting subsection (1)—

(a) a pricing methodology determined by IPART may—

(i) apply generally or be limited in its application by reference to specified exceptions or factors, or

(ii) apply differently according to different factors of a specified kind, and

(b) IPART may determine a pricing methodology for a monopoly service despite a previous determination under this section already applying to that service.

Example.

A pricing methodology may apply differently to different classes of services based on location, the service provided and the infrastructure concerned.

(3) Subject to the regulations, the provisions of the Independent Pricing and Regulatory Tribunal Act 1992, Part 3 in relation to government monopoly services apply to and for a matter referred to IPART under this section in the same way as they apply to and for a matter referred to IPART under that Act, section 12.

(4) Without limiting the kinds of regulations that may be made under subsection (3), the regulations may deal with the processes that IPART must use in investigating and determining a pricing methodology.

(5) It is a condition of a monopoly supplier’s licence that the monopoly supplier must comply with a relevant determination by IPART under this section.

(6) In this section, connection charge means a fee or amount charged to connect premises to a water or sewerage service, and includes an infrastructure charge, developer charge or administration charge related to connecting premises to a service.

s 52: Subst 2021 No 26, Sch 1[19].

53 Obligations of monopoly suppliers

53 Obligations of monopoly suppliers

(1) It is a condition of a monopoly supplier’s licence that the supplier must connect premises within the area to which the monopoly service declaration under this Division applies and supply the monopoly service to the premises, if the owner of the premises requests the supplier to do so.

(2) Without limiting subsection (1), the regulations may impose further conditions on a monopoly supplier’s licence relating to the connection and supply of the monopoly service to premises within the area to which the monopoly service declaration under this Division applies.

(3) Subsection (1) does not apply to a licensee until—

(a) an operational approval has been granted that enables the monopoly supplier to supply the monopoly service to the premises concerned, and

(b) the owner of the premises concerned has complied with the conditions set out in the regulations, if any, or the reasonable conditions specified by the licensee to ensure the safe, reliable and financially viable supply of the monopoly service, if any.

(4) Subsection (1) does not apply in relation to premises if—

(a) the premises have been disconnected from the scheme providing the monopoly service by order of a court or in accordance with a customer contract referred to in section 46AB, or

(b) the requested service is part of a coupled service, being a service that the licensee cannot provide on a scheme-wide basis without providing another service, and the owner of the premises refuses to accept the coupled service, or

Example.

Recycled water and sewerage services may be coupled if it is necessary to provide recycled water produced from the treatment of sewage to provide the sewerage service.

(c) other circumstances, if any, prescribed by the regulations exist.

s 53: Subst 2021 No 26, Sch 1[19].

Part 5A Last resort arrangements

Part 5A Last resort arrangements

pt 5A: Ins 2021 No 26, Sch 1[20].

54 Meaning of “essential infrastructure”

54 Meaning of “essential infrastructure”

(1) IPART may, by written notice to the registered operator of a scheme, determine that the scheme is essential infrastructure under this Act if satisfied—

(a) a failure in the provision of a water or sewerage service provided by, or proposed to be provided by, means of the scheme would have an adverse effect on customers of the service, and

(b) either—

(i) alternative arrangements for the provision of a replacement service would not be, and could not readily be made to be, reasonably available, or

(ii) it is reasonably necessary for customers of the service to be automatically transferred to the provider of a replacement service if there is a failure in the provision of the service.

(2) Despite subsection (1), IPART may not determine that a scheme is essential infrastructure under this Act if a council—

(a) is the registered operator of the scheme, or

(b) owns all the water industry infrastructure comprising the scheme, other than reticulation pipelines.

s 54: Rep 2021 No 26, Sch 1[19]. Ins 2021 No 26, Sch 1[20].

54A Revocation of determination of essential infrastructure

54A Revocation of determination of essential infrastructure

(1) IPART may, on application by an essential service provider or last resort provider or on its own initiative, revoke the determination of water industry infrastructure as essential infrastructure if satisfied the determination would not now be made.

(2) On receiving an application for revocation of a determination, IPART must invite submissions on the application from each provider or last resort provider of the essential service, other than the applicant.

(3) An invitation to make submissions on an application must allow at least 28 days for submissions to be made and must be accompanied by a copy of the application or set out how a copy of the application may be obtained.

(4) If IPART proposes to refuse an application or to revoke the determination on its own initiative, IPART must—

(a) give written notice of the proposed refusal to each provider or last resort provider of the essential service specifying the reasons for it, and

(b) allow them at least 14 days to make submissions to IPART about the proposed refusal.

(5) On making a decision on an application or revoking a determination on its own initiative, IPART must ensure notice of the decision is given to the Minister and each provider or last resort provider of the essential service and publish the decision on IPART’s website.

(6) If IPART revokes the determination, the designation of a last resort provider for the former essential infrastructure is of no further effect.

s 54A: Ins 2021 No 26, Sch 1[20].

55 Designation of last resort providers of essential service

55 Designation of last resort providers of essential service

(1) The Minister may, by order published in the Gazette, designate a public water utility or licensee as a last resort provider to take the place of a provider of an essential service if the provider of the essential service is declared to have failed.

Note.

The declaration of a failure is made under section 56.

(2) IPART is to investigate and make a recommendation to the Minister as to the person to be designated as the last resort provider.

(3) The person recommended by IPART is to be—

(a) a public water utility in whose area of operations the essential infrastructure is located, or

(b) a licensee who has expressed interest and who satisfies the criteria prescribed by the regulations for appointment as a last resort provider, if any.

(4) Expressions of interest from licensees to be designated as a last resort provider are to be sought in the cases in which IPART determines it to be appropriate or if the Minister so directs in a particular case.

(5) If a recommendation is to be made following an application for a scheme approval, IPART need not commence the necessary investigation until works for the essential infrastructure have substantially commenced under the scheme approval.

(6) The Minister—

(a) must, unless the urgency of the circumstances precludes it, consider IPART’s recommendations, but is not bound to accept them, and

(b) may seek further advice from IPART on the designation of last resort providers.

(7) Without limiting the terms of a designation of a last resort provider, a public water utility may be designated as the last resort provider of all essential services provided within its area of operations if a provider of an essential service is declared to have failed.

(8) If the person to be designated as a last resort provider is not a person recommended by IPART following the seeking of expressions of interest from licensees, the Minister must, before designating the person, unless the urgency of the circumstances precludes it—

(a) give written notice of the proposed designation to—

(i) the provider of the essential service for which the last resort provider is to be designated, and

(ii) the person proposed to be designated as the last resort provider, and

(iii) the other providers, if any, or last resort provider of the essential service, and

(b) allow them at least 14 days within which to make submissions to the Minister about the proposed designation.

(9) If the person designated as a last resort provider is a licensee, IPART—

(a) must, as part of its review of the licensee’s licence under section 85(2), investigate and make a recommendation to the Minister regarding the continuation of that designation, and

(b) may investigate and make a recommendation to the Minister regarding the continuation of that designation after a statutory default by the licensee or a related corporation of the licensee.

(10) The regulations may provide for additional matters relating to the designation of last resort providers.

s 55: Rep 2021 No 26, Sch 1[19]. Ins 2021 No 26, Sch 1[20].